Newkirk v. Tracey

Morse, J. The plaintiff sued the defendants in the circuit court for the county of St. J osepli, in trespass, for the use and value of occupation of certain premises alleged to have been wrongfully held by them after the same were sold and conveyed to plaintiff by the executors of one Eleazer Tracey, and claiming in his declaration treble damages under section 8306, How. Stat. The plaintiff- recovered single damages to the amount of $743, which the jury assessed in detail as follows : Expenses in obtaining restitution, $135;-preparing land for crops and seed sowed in 1880, $95; loss of use of land to September 10,1881, $1,220 ; loss of same land from September 10,1881, to August 1, 1882, $680 ; total $2,130. From which total they deducted $1,387 for crops raised by defendants, but obtained by plaintiff as hereinafter stated, and taxes paid by defendants for the years 188'0 and 1881. This special finding in detail was asked by plaintiff’s counsel to meet the claim of defendants’ counsel, who denied the right of plaintiff to recover for expenses in getting restitution of the land, and who claimed— “ 1. That the action of trespass could not be maintained at all. “ 2. That damages in any event could not be recovered back of September 10, 1881, the date at which the law authorizing the bringing of the action in like cases took effect.” The defendants bring error. The undisputed facts in the record show that the said Eleazer Tracey died May 19,1877, owning the land described in plaintiff’s declaration and leaving, a will empowering his [178] executors to sell it. The defendants are his widow and heirs, who took possession of t]¿e premises and cropped them for about five years. ' March 18, 1880, the executors sold and conveyed the land to the plaintiff, and March 26, 1880, he demanded the possession of the premises. The defendants refused to surrender such possession, and denied the plaintiff’s right to the premises, and November 30, 1880, filed a bill in chancery to set aside the executors’ deed. The validity of the deed was affirmed in this Court, June 27, 18S2.1 At the date of such executors’ deed there was a crop of wheat growing on the land, which had been put in by the defendants in the fall of 1879, and which, at maturity, they harvested. Plaintiff replevied it, and in February, 18S3, the suit was tried in the circuit court, and judgment for the value of the wheat, $1,875, rendered for the defendants. In the spring of 1880, the plaintiff went upon the premises and sowed some oats and clover-seed, but was unable to retain possession, and lost his work. The defendants planted and harvested some corn, the most of which the plaintiff replevied. In the fall of the same year the defendants put in another crop of wheat, which they harvested in 1881. The plaintiff also replevied this. The defendants sowed wheat again in the fall of 1881, and harvested the same in 1882, but the plaintiff got possession of the crop, and retained it. March 27, 1882, the plaintiff commenced summary proceedings before a circuit court commissioner to obtain possession of the land under section-6706 of Compiled Laws of 1871, as amended by Act 198 of 1881 (Iiow. Stat. § 8295), and on appeal to the circuit court recovered a judgment against the defendants, July 19, 1882, under which he obtained possession of the premises, August 1, 1882. In March, 1883, while these replevin suits were pending between the parties, besides other litigation, and the plaint [179] iff was designing to take the first replevin suit to the Supreme Court, negotiations were entered into looking towards a settlement of the controversies. These negotiations were conducted mostly in writing, between John B. Shipman, counsel for plaintiff, and H. F. Severens, attorney for defendants. In July of the same year a settlement was reached.' The writ of error, which had been taken out in the first case, was dismissed, and plaintiff paid the judgment in that suit. He kept the wheat and corn in the other two replevin suits, and stipulations were filed in each, July 12, 1883, entering judgments in favor of the plaintiff against defendants. The defendants’ counsel claims that the plaintiff, under the evidence, was not entitled to bring trespass, as the defendants were rightfully and peaceably in possession until the date of the judgment in restitution ; that the plaintiff could only bring trespass under the provisions of the statute as amended in 1881, which did not take effect until September 10, 1881, and there being no notice to quit, or demand of possession, after September 10, 1881, no action could be maintained under the amended statute. We are of the opinion that counsel is correct in this claim. It must be admitted that, without the statutes referred to, the action of trespass would not lie. The plaintiff being out of possession, and the defendants having entered rightfully and peaceably in the first instance, and having retained their possession under such entry to the end, there was no foundation at common law for the present action ; and the plaintiff’s declaration is based upon the statutes, “section twenty-four of chapter two hundred and eleven of the Compiled Laws of 1871 of this State, and the amendments thereof.” Prior to Act 198 of the Laws of 1881 there was no authority for summary proceedings in a case like the present, and therefore no warrant for an action of trespass, as the section authorizing the action refers in terms to the summary proceedings. The statute is as follows: “ § 8306. Sec. 21. — The complainant obtaining restitution of any premises under the provisions of this chapter, shall be entitled to an action of trespass, or trespass on the [180] case, against the defendant, and may recover treble damages from the time of the forcible entry, or forcible detainer, or of the notice to quit, or demand of possession, as the case may be; and all other damages to which he may be entitled.” Previous to the tenth day of September, 1881, the day upon which the amendment took effect, the statutes authorizing summary proceedings to recover possession of lands did not include premises sold under executors’ deeds, as against heirs or devisees in possession. At and after that date, such proceedings were authorized as follows: “ The person entitled to any premises may recover possession thereof in the manner hereinafter provided, in the following cases: First, * * *; second, * * *; third, * * * , or when any heir or devisee shall continue in possession of any premises sold and conveyed by any executor or administrator under license from the probate court, or under authority in the will, to pay the debts of the deceased testator or intestate.” (How. Stat. § 8295.) The statute (section 8306) authorizing the action of trespass must be considered as penal in its nature, and can have no retroactive effect. It follows, therefore, that the plaintiff could recover in this action no damages arising before the tenth day of September, 1881. The inquiry, then, arises as to the plaintiff’s right to recover damages suffered by the defendants holding possession after that date. It cannot be considered that there was any forcible entry or detainer of these premises. As before stated, the defendants’ entry was peaceable, and they had the right of use and occupation until the land was sold by the executor. Nor does the evidence show any forcible detainer since the executors’ sale. Therefore, under this statute, a notice to quit, or a demand of possession, was necessary before a right of action in trespass would accrue. It is conceded that there was no such notice or demand after September 10, 1881. Can the demand of possession of date March 26, 1880, be made the basis of recovery under a statute not then in existence ? We think not. It must be considered, in this connection, that the defendants, as heirs of Eleazer Tracey, were holding these premises under a claim of right, and while the validity of the execu [181] tors’ deed to plaintiff was an open and controverted question, until the final decision in this Court of date June 27, 1882. This holding could not, under such circumstances, be made a wrongful one, and subject to penal consequences,'by any act •of the plaintiff or defendants taking place before the statute took effect, and not done in contemplation or with knowledge of it. We are also clearly satisfied from the correspondence between the attorneys, and the acts of the parties, that all the matters embraced in this suit were settled in July, 1883, and the circuit judge should have so directed the jury as a matter of law. The judgment of the court below will therefore be reversed, with the costs of both courts. There is no reason for a new trial, and none will be granted. The other Justices concurred. Footnotes [1] Tracy v. Murray, 49 Mich. 35.